How brands can make friends and influence people online

Managing IP is part of Legal Benchmarking Limited, 1-2 Paris Gardens, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2026

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Cookies Settings

How brands can make friends and influence people online

The opportunities and dangers of brands interacting on social media were discussed in yesterday’s session “Beyond Native Advertising: The Line Between Social Media Posts and Advertising”

“We are seeing see interactions with brands online in a way we didn’t see before,” said moderator Stephen Coates of Twitter in the U.S.

Brands are also using social influencers much more than ever before. They are keen to reach the millions of followers of celebrities’ social media accounts (this includes pets – a cat called Nala has 2.8 million followers on Instagram, for example). “Brand managers are getting more sophisticated as well as the consumers,” said Ann Chen of Abbott Laboratories in the U.S.

Chen said it is vital to be upfront about what has been paid for: “Some people say: ‘I don’t want influencers to disclose, I want it to look natural.’ But you did give them something.”

The Federal Trade Commission in December issued a guide on native advertising, which it defined as “advertising and promotional messages integrated into and presented as non-commercial content.”

Under FTC rules, an influencer must disclose if they have received compensation to promote a brand on social media. “The advertiser has to make sure the influencer is doing that,” said Chen. “The burden is on the advertiser, not the influencer.” Brands must make sure a post is amended if it is not correct. Chen suggested payment should be withheld until the influencer has met the terms of their contract, which should clearly specify what the celebrity’s responsibilities are. Chen added that the rules also apply to agencies and vendors, so they should be closely monitored as well.

Barry Benjamin of Kilpatrick Townsend & Stockton in the U.S. said that it is tough to train young people within companies and agencies to understand what must be disclosed and why. He said there was previously “huge resistance” to including #ad in any post, but that this had recently changed.

“It was like the switch was flipped,” Benjamin said. “Pretty much all influencers now include #ad and nobody cares. So when you are talking to young people, just tell them nobody cares. It’s a new world.”

One recent example where disclosure was not given came in March when Lord & Taylor settled with the FTC for paying 50 online fashion influencers to post Instagram pictures of themselves wearing the same paisley dress, but failed to disclose they had given each influencer the dress, as well as thousands of dollars, in exchange for their endorsement. This is being used as a cautionary tale for brands in training for social media.

Chen noted that pharmaceutical companies have particular challenges, with regulations requiring they provide fair balance, adequate substantiation and effective disclosures, and also avoid off-label use and drug claims. This can be tricky given the lengthy disclaimers they normally need and the limited space on social media. Other questions are what the brand should do if a blogger mentions a non-authorized use of a product or whether to retweet or like user-generated comments that do not conform to regulations.

One recent example came last year when the U.S. Food and Drug Administration found celebrity Kim Kardashian’s endorsement of a morning sickness drug on Instagram was “false and misleading,” did not include risk information, omitted material facts and suggested the drug was safer than had been demonstrated. She reposted a corrected post including the hashtag #CorrectiveAd.

During the session Leanne Stendell of YUM! Brands in the U.S. also discussed emojis and whether they are copyright protectable. Another issue is branded emoji. “Unicode will never approve a branded emoji,” she said. “One way to get around that is to use stickers, but what if users do something offensive with them or combine them with a competitor’s content? This is the

more from across site and SHARED ros bottom lb

More from across our site

Stephenson Harwood’s trademark prosecution push and patent ambitions could complement Taylor Wessing’s remaining but depleted European IP strength following its UK arm’s departure
Gerben IP’s first woman partner, Sophie Edbrooke, explains how boutique life allowed her to broaden her expertise, take on leadership responsibilities and carve out a route to the top
INTA has a right to protect its Annual Meeting, but making it harder for others to hold similar events risks leaving delegates with a bigger travel bill
The firm says it hopes to capture patent litigation work in Texas by arming itself with experienced trial lawyers with venue expertise
Ken Iijima's arrival continues a trend of ex-Pizzeys practitioners joining RnB IP, whose co-founder says independent ownership and a lucrative compensation model have become attractive in a consolidating market
McDermott Will & Schulte lawyers explore why the UPC is seeing rapid adoption by medtech for fast-moving disputes, while pharma and biotech take a cautious, selective approach over revocation risks
IP firms may be growing more comfortable with external capital, but uncertainty over who could ultimately own the business is complicating the investment pitch
The former Western District of Texas judge addresses perceptions of his courtroom, reveals what comes next as he returns to practice at A&O Shearman and explains why marathon running is ‘cathartic’
International Anti-Counterfeiting Coalition says it has been blocked from hosting its annual event in the city, ending a long tradition of holding the gathering in the days leading up to INTA’s flagship event
The ITC is a powerful tool for litigators, practitioners say, as the threat of an exclusion order on a critical tech component could mean disrupting the entire data centre's operations
Gift this article